CRI News

So Much for Transparency
By Dr. Tanya Hettler, Ph.D., Director 
Center for Educational Excellence
June 30, 2022 


Transparency has recently become a hot topic nationally and in Delaware. Concerns about transparency in education have focused on K-12 curriculum, teacher training, and parental rights. Transparency in government, Freedom of Information Act (FOIA) policies, and what aspects of government operations should be made available to the public have also been debated.


Running against the trend toward greater transparency, on June 9, 2021, the chair of the Senate Elections and Government Affairs Committee sponsored Senate Bill 155 to amend the transparency laws in Delaware. This bill restricted FOIA requests and received public opposition. SB 155 was passed out of the Senate Elections and Government Committee last year but has not been heard.


SB 155 would grant public bodies the ability to deny requests they deem "unreasonably broad, unduly burdensome, intended to disrupt the essential functions of a public body, or...abusive."


The bill would further allow public bodies to charge additional "administrative fees for all reviews, including the review and redaction of information exempt from FOIA."


Delaware's FOIA law already prohibits disclosing certain information. The new language is intentionally vague and could be misused by a public body refusing to provide the requested information.


On June 9, 2021, Delaware's chief deputy attorney general, Aaron Goldstein, spoke as an expert witness supporting SB 155. Goldstein argued that these changes are necessary due to a small number (of) FOIA requests that are abusive that undermine the intent of FOIA. He stated that "the good intentions of FOIA are turned into a weapon to burden the government or attempt to harass or stalk specific public employees."


There were several public comments opposing SB 155.


Javonne Rich, policy and advocacy director for the American Civil Liberties Union of Delaware, argued that the bill "contradicts the purpose and spirit of FOIA," which is to "maximize efforts to make data available to the public." She expressed concern that SB 155 would allow public bodies to hide behind vague language to deny FOIA requests. She also felt that the bill was redundant as current legislation prescribes that requests must be reasonable and must adequately describe the records so that they can be efficiently located.


John Flaherty, director of the Delaware Coalition for Open Government, stated that SB 155 would lead to new burdens for those making FOIA requests, including new legal fees, scanning fees, broad FOIA exemptions, prohibitions on monetary compensation, and shorter times to seek court relief. He also highlighted findings of an analysis conducted by the Coalition for Open Government, which found that since 1995, no FOIA requests were labeled "unreasonable, disruptive or abusive" and that "no examples have been provided of FOIA requests that have been fulfilled under the current law but would have been denied under the proposed law."


Claire Snyder-Hall, Director of Common Cause Delaware, indicated that the bill would add four new exemptions to FOIA, as well as allow public agencies to deny FOIA requests that agencies find inconvenient or embarrassing. She described the new language presented in the bill as expansive and potentially open to wide interpretations.


The Better Government Association (BGA) and the National Freedom of Information Coalition (NFOIC) conducted an analysis of the FOIA policies in all 50 states.


They calculated that 38 out of the 50 states got an overall grade of "F," including Delaware.


To build its ratings, the BGA created a "gold standard" against which the laws of each state could be objectively and accurately measured in five categories: Response Time, Appeals, Expedited Review, Attorney's Fees & Costs, and Sanctions. Each state's total points were divided by the total points possible, resulting in a fixed-percentage score.



The National Freedom of Information Coalition lists 16 exemptions to Delaware's Open Records law, including "The emails of the Delaware General Assembly and their staff." This particular phrase means that no correspondence of the Delaware legislature can be requested under the FOIA law. It also means that if anyone wants to guarantee that information won't be made public, all they have to do is carbon copy one of the state legislators. This list of exemptions is larger than in many other states.


Clearly, Delaware's laws are already very restrictive, and the last thing we need is to make them more so, which is what SB 155 would do.


One good step to increase the accessibility of Delaware's FOIA law, which has been implemented in other states, is to add a sunshine committee with oversight over FOIA decisions. This would ensure that FOIA requests are honored unless it is absolutely necessary that information legally be kept private.


Our government is meant to work for the people. We Delawareans are the employer of our legislators who make the laws for the Executive Branch to implement. It is not their place to protect state government bodies from our valid legal inquiries. They should be as open as possible regarding the government's activities. Their desire to limit our knowledge is suspect in and of itself.


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